Judging by today’s headlines (especially, and disgracefully, the Daily Mail’s, ‘Enemies of the People’ front page), you might think that the High Court had arbitrarily struck down some of our rights as UK citizens. This could not be further from the truth. The legal challenge arose as it was unclear whether the Prime Minister had the authority to trigger Article 50 without a vote by MPs.
Campaigners argued that triggering Article 50 without the consent of Parliament would in effect be stripping UK citizens of rights conferred on them when MPs passed the European Communities Act 1972, including freedom of movement in the EU and the ability to take a case to the European Court of Justice.
The ruling clearly has important political implications for Brexit, but it was a ruling, not on the politics of the issue, but on the correct interpretation of constitutional law. As such, it is hugely important and (if it is upheld in the Supreme Court) a powerful affirmation of the rights of UK citizens as enshrined in law.
The Court implied in its ruling that the Government would have to enact primary legislation in Parliament in order to be able to trigger Article 50. David Davis, the Secretary of State in charge of Brexit, has said that this is what the Government expects to have to do if they lose their appeal in the Supreme Court. Primary legislation would provide scope for MPs to table amendments, and amendments will certainly be tabled in an attempt to require the Government to consult Parliament more closely than is the norm in international negotiations. Amendments to require a referendum to approve the terms of Brexit at the end of the negotiations are also likely. The Government will aim to draft their legislation tightly enough to make such amendments inadmissible, but they will have a messy fight on their hands.
Since the Supreme Court is not expected to opine before December, and assuming that it confirms the High Court ruling, the Government will be hard pressed to meet their end-March target for triggering Article 50. The pressure on the PM from within her own Party to go for an early General Election in the Spring of 2017 will be great. She could probably secure a majority in Parliament to revoke the Parliament Act, which enshrines the five-year term: it would be difficult for Opposition parties to appear frightened to face the people. The Conservative party managers will be examining the entrails of both the Witney and up-coming Richmond by-elections with particular intensity.
Measurement and evaluation